Applying for a waiver of inadmissibility to become a tourist to the USA?
September 19, 2016 9:00 AM   Subscribe

My friend was denied entry to the US for his planned vacation because he admitted to having used marijuana, and told he needs to apply for a waiver of inadmissibility to be eligible for a tourist visa in the future. He doesn't have immediate plans to return, but would like some guidance on how this process would work if he attempts it, and in particular on whether he can do this without a specific planned visit or if he needs to wait until he wants to go back and try then.

My friend (British/Australian passports) was recently denied entry to the US for his vacation because when asked "When did you last smoke marijuana?" he admitted to having smoked it within the last year. He was told he can apply for a waiver of inadmissibility with form i601 in order to be eligible to enter in the future. However the instructions for form i601 imply that he can only use it if he is applying for a K or V visa to join an immediate relative in the USA, and what he actually wants is to be eligible to visit the US in the future for work/tourism. Have we misunderstood the use of i601, or is there a different process he is meant to use - or did the immigration officer misrepresent his options and actually he's just screwed and can never go to America again?

He has no definite future need to enter the US, it just seems like it would make life easier to fix this if possible. If he does make the application I hope to convince him to use a lawyer, but currently he thinks that would be unnecessary - any recommendations/cost estimates for an Australian lawyer who works in US immigration law, or horror stories around this particular visa issue, would also be appreciated!
posted by the agents of KAOS to Law & Government (6 answers total) 1 user marked this as a favorite
You can check this news story. It looks like the cost is prohibitive ($930 USD). With Canada probably legalizing marijuana, next year, I would be optimistic about them changing the visa ban.
posted by demiurge at 9:17 AM on September 19, 2016

ooh, I had read that news story but had not previously clicked through on the links - their link for 'advance processing' goes to form i192, where the instructions say NOTE: Do not file this application if you need to obtain a nonimmigrant visa. You should contact the appropriate U.S. Embassy or U.S. Consulate if you have any questions regarding your eligibility for waiver of inadmissibility in connection with an application for a nonimmigrant visa.

So...I guess that means he needs to just apply for an ESTA, be denied, apply for a non-immigrant visa and then it may or may not be rejected, and then he could use this form?

I am far less optimistic about them changing the ban, and especially about the prospect of retroactively approving people they've already put 'on a list', but it's worth hoping for!
posted by the agents of KAOS at 9:48 AM on September 19, 2016

He doesn't need to pay a fee, and he doesn't need to file any paperwork himself.

It sounds like he's gotten some conflicting information based on confusion regarding whether he's applying for an immigrant or a nonimmigrant visa. For the immigrant visa, there are extra fees and one can fill out the i601. For very specific circumstances that don't apply to your friend (canadian citizens applying for specific T and U visas, not general tourist visas) one should use the i192.

For everyone else (including your friend, it sounds like) the only option is to apply for a regular tourist visa (B1/B2). He should be honest about the marijuana usage - the ESTA denial will be visible to whomever is interviewing him, and appearing to be dishonest will be detrimental. He'll go for an interview, talk to the interviewing officer about his circumstances, why he wants to visit the US, and his marijuana usage. If he satisfies all of the other qualifications for a visa (not guaranteed) he will be eligible to receive a waiver. He may need an evaluation from a physician saying that he is not a pathological drug abuser, but if so, he will receive information about how to go about doing this at the interview. If he qualifies for a waiver, he won't need to pay any money or fill out any paperwork - that will be done by the interviewing official. They will give back his passport and tell him to wait until the waiver is either granted or denied - a process that can take a few months. If it is granted, it is typically good for five years. After five years, he will need to go through the process again.

Essentially, the steps are: 1. Apply for a B1/B2 visa. 2. Be honest at the interview and qualify for a waiver. 3. Provide any requested information and be prepared to wait a few months until the waiver is granted.
posted by exutima at 12:48 PM on September 19, 2016 [2 favorites]

PS he absolutely does not need a lawyer for this. There is nothing a lawyer could do besides spend his money and annoy the folks making the decisions. If you think this is an ill-advised basis for making decisions you should vote for politicians who will decriminalize marijuana at the federal level and/or change our immigration laws, but as it stands, for tourist visas there is no appeals process besides the waiver system and no role for an attorney.
posted by exutima at 12:58 PM on September 19, 2016 [1 favorite]

Is it possible he checked the wrong box, thinking that the box referred to the question above it?
posted by A Terrible Llama at 2:06 PM on September 19, 2016

Thanks exutima - that's exactly the clarification I was looking for! As a non-citizen I will have to content myself with criticizing and not voting I'm afraid.
A Terrible Llama - it was a conversation, not a form.
posted by the agents of KAOS at 3:46 PM on September 19, 2016

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